Saturday, April 28, 2012

We looked in the last post at the antislavery politics of Roger Taney, infamous as the Chief Justice of the Dred Scott decision, in his younger days, relying on Timothy Huebner's "Roger B. Taney and the Slavery Issue: Looking beyond - and before - Dred Scott" The Journal of American History June 2010.

Taney's most famous antislavery pronouncement came in 1819, when he was defending antislavery Methodist minister Jacob Gruber who was being charged in Maryland for inciting insurrection in an sermon which condemned slavery in colorful terms. Huebner explains that Taney's successful defense of Gruber was primarily based on Gruber's right to free speech.

But Taney did much more than defend Gruber’s legal right to speak freely. "I might ... safely rest the defence on this ground," Taney noted to the jury. Instead, he pressed further and attempted to justify the arguments that Gruber had outlined in the offending sermon. In doing so, Taney echoed Gruber’s sentiments but used his own words. "He [Gruber] did rebuke those masters, who, in the exercise of power, are deaf to calls of humanity; and he warned them of the evils they might bring upon themselves," Taney announced. "He did speak with abhorrence of those reptiles, who live by trading in human flesh, and enrich themselves by tearing the husband from the wife — the infant from the bosom of the mother." Taney continued: "Shall I content myself ... with saying he had a right to say this? that there is no law to punish him? So far is he from being the object of punishment in any form of proceeding, that we are prepared to maintain the same principles, and to use, if necessary, the same language here in the temple of justice." Taney was seeking not simply to win an acquittal for his client by defending him from the charges against him. He went a step further, reaffirming and validating the substance of Gruber's sermon. [my emphasis]

Why, lawyer Taney got downright "uncivil" in trashing the slavedowners and their traffic in human flesh!

The most famous passage in his speech was this:

A hard necessity, indeed, compels us to endure the evil of slavery for a time. It was imposed upon us by another nation, while we were yet in a state of colonial vassalage. It cannot be easily, or suddenly removed. Yet while it continues, it is a blot on our national character, and every real lover of freedom, confidently hopes that it will be effectually, though it must be gradually, wiped away; and earnestly looks for the means, by which this necessary object may be best attained. And until it shall be accomplished: until the time shall come when we can point without a blush, to the language held in the [D]eclaration of [I]ndependence, every friend of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave. [my emphasis]

But Huebner explains that Taney's posthumous, post-Civil War defenders who tried to integrate him into the Lost Cause narrative as an antislavery figure who decided Dred Scott on pure Constitutional principles are just blowing smoke.

Huebner notes that Taney in subsequent years is not known to have made any such further explicit statement against the institution of slavery, though he did take antislavery stands in his terms as Maryland state senator from 1816 to 1821, as described in the previous post. Taney became a Jacksonian Democrat and served under President Jackson as Secretary of War, Attorney General and Treasury Secretary. During the Jackson Administration he achieved a reputation as a radical - of the left rather than the rightwing sort - based on his opposition to the Bank of the United States and the power of concentrated wealth it embodied and represented. It was President Jackson the slaveholder who appointed the formerly outspoken antislavery lawyer to Chief Justice of the Supreme Court.

The immediate issue in the 1857 Dred Scott decision was whether a slaveowner could bring his human property into a free territory and still retain legal possession of them. Taney notoriously ruled on behalf of the Court majority that they could. This decision was consistent with the strategy of the Slave Power (as antislavery advocates referred to the Southern slaveowners) in the 1850s to use federal power to override any state or territorial laws that might interfere with the Peculiar Institution of slavery. In this case, they got Taney's Court to rule against the long-established federal power to regulate slavery in the territories. The conflict over slavery in "Bleeding Kansas" was one of the major political events of the 1850s for the United States. Dred Scott would have multiplied such conflicts in the territories had the Civil War not intervened with an even greater armed conflict. In more recent terms, we could say that Taney had decided that the country needed "two, three, many Kansases".

Huebner quotes in infamous racism in Taney's decision:

Reading the opinion of the Court with trembling hands and fading voice, Taney spoke the words for which he became known. "The legislation and histories of the times, and the language used in the Declaration of Independence show that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words in that memorable instrument," he wrote. "They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. ... This opinion was at that time fixed and universal in the civilized portion of the white race." More significant in the context of the debate over the extension of slavery, Taney held that Congress had no power to prohibit slavery in federal territories, thus putting the Court squarely on the side of slaveholders. Northern critics immediately raised their voices in a chorus of dissent, protesting the Court’s adoption of an extreme pro-southern interpretation of the Constitution. [my emphasis]

Huebner argues convincingly that the Lost Cause claim of Taney as an antislavery man who had ruled on pure Constitutional principles in Dred Scott doesn't hold water. He explains that that Taney had clearly rejected his earlier antislavery stance. During his time as Attorney General in the Jackson Administration:

As U.S. attorney general under President Andrew Jackson, Taney provided glimpses of the stance he would take in the Dred Scott decision, particularly regarding the question of whether African Americans had been included in the political community at the writing of the Constitution. In 1832, he authored an official opinion on the constitutionality of a South Carolina statute that provided that black seamen who arrived in Charleston were subject to arrest and confinement while their ship remained in port. Written for the secretary of state, Taney’s opinion referred to African Americans as members of a "degraded class." Whatever limited rights African Americans possessed, Taney argued, came from the states, who legitimately conferred or withdrew those privileges based on "the sufferance of the white population." Maintaining white control over black liberties also helped prevent "the evils of insurrection and rebellion."

This was still a long way away from his Dred Scott ruling that African-Americans, free or slave, "had no rights which the white man was bound to respect". But he was clearly moving in that direction in that official opinion.

In a concurring Supreme Court opinion in 1842 (Prigg v. Pennsylvania), he argued, in Huebner's summary, "that the Constitution prohibited states only from interfering with a slaveholder’s right to recover his property, not from supporting or enforcing the rights of slaveholders. States could regulate slavery, he concluded, so long as they did not threaten the constitutional guarantees of slaveholders." By that time, he was clearly on the road to Dred Scott, taking an outlook in which the Constitution protected the rights of slaveowners to their human property above all other rights, even of white male citizens.

Huebner suggests that Taney's evolution - or degeneration - on the issue of slavery had heavy components of Party conformity and fear:

At this time [1828], Taney embraced the party of Andrew Jackson, a slave-owning Tennessean who built a southern-dominated political party that focused on the rights of slaveholders and the prerogative of states. Over the next several years the Democratic party supported slavery and white supremacy in a variety of ways—from its Indian removal policy to its eventual stance in favor of the annexation of Texas. As an official of the Jackson administration, Taney ceased to think of slavery solely from the perspective of a small-town Maryland lawyer and instead began to reason and act as a representative of the president and his party. Nat Turner’s rebellion in 1831 gave Taney further cause to reconsider his views on slavery and black rights. The revolt prompted a nearly universal response of fear and dread on the part of white southerners, who became more mindful of the threat of uprising and increasingly vigilant about maintaining racial control. [my emphasis]

The Jacksonian Party, the Democratic Party, and the Jacksonian movement developed in two major directions: one a rigidly proslavery Party and sentiment, the other a more democratic one, the latter being more genuinely "Jacksonian" in my view. John Calhoun and other advocates for slavery became skilled at using the exaggerated but not completely unrealistic fear of slave revolts to scare even Northern whites into being more sympathetic to slavery.

Taney's thinking in Dred Scott wasn't some convoluted purist reasoning made in sorrow by a man who in his heart disliked and rejected slavery. He had become a true believer:

By the time of Dred Scott, Taney’s thinking had evolved into full-blown extremism. The best evidence that Taney’s notorious judicial opinion reflected his personal beliefs came in a rare private letter on slavery, penned in August 1857, just after he wrote the Dred Scott decision. In the letter, Taney affirmed his adamant disapproval of emancipation. "Every intelligent person whose life has been passed in a slaveholding State, and who has carefully observed the character and capacity of the African race, will see that a general and sudden emancipation would be absolute ruin to the negroes, as well as to the white population," he wrote. "In the greater number of cases that have come under my observation, freedom has been a serious misfortune to the manumitted slave; and he has most commonly brought upon himself privations and sufferings which he would not have been called on to endure in a state of slavery." Apart from the strictly legal holding in Dred Scott, moreover, the rhetoric of Taney’s opinion—the idea that an African American could "justly and lawfully be reduced to slavery for his benefit" - reveals his acceptance of the claim of southern paternalists that slavery benefitted [sic] blacks. By the 1860 presidential election Taney had joined the vast majority of his fellow white southerners in conflating free soil and abolition, as well as in dreading the possibility of a Lincoln presidency and a massive insurrection. "I am old enough to remember the horrors of St. Domingo," he confided to a friend on the eve of the election, “and a few days will determine whether anything like it is to be visited upon any portion of our own southern countrymen. I can only pray that it may be averted and that my fears may prove to be nothing more than the timidity of an old man.”

The Roger Taney of the Dred Scott decision wasn't the tragic figure of Lost Cause pseudohistory. He was a 19th century Antonin Scalia. The author of an anonymous 1865 pamphlet called The Unjust Judge which Huebner quotes was on the right track saying that Taney was "next to Pontius Pilate, perhaps the worst that ever occupied the seat of judgment among men."

No comments:

Featured Post

American poster from the Second World War; that's not one of those in which we are currently engaged, though some people seem to think ...

Johann Gottfried von Herder (1744–1803)

Herder developed a philosophy of history in which he focused on the prominent ideas of historical eras, that he held to be fundamentally shaped by the successive historical stages leading to improvements in civilization. He also developed theories of language anticipating 20th-century linguistics. "Instead of seeing [language] as an assemblage of signs co-ordinated with things, [Herder saw it] rather as the necessary embodiment of a certain form of consciousness, which in this case is that form in which there are such things as signs for us." (Charles Taylor)